Opinion
2020-01613 Index No. 52300/17
04-26-2023
Richard LYMAN, plaintiff-respondent-appellant, v. CABLEVISION OF OSSINING LIMITED PARTNERSHIP, respondent, Manzer's Landscape Design & Development, Inc., defendant-respondent-appellant, Woods III in Westchester Homeowners Association, Inc., appellant-respondent.
Black Marjieh & Sanford, LLP, Elmsford, NY (Sheryl A. Sanford of counsel), for appellant-respondent. Law Offices of Francis X. Young, PLLC (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Joshua Block ], of counsel), for plaintiff-respondent-appellant. Braff, Harris, Sukoneck & Maloof, New York, NY (Terrence M. McNamara of counsel), for defendant-respondent-appellant. Newman Myers Kreines Harris, P.C., New York, NY (Ian F. Harris and Stephen N. Shapiro of counsel), for respondent.
Black Marjieh & Sanford, LLP, Elmsford, NY (Sheryl A. Sanford of counsel), for appellant-respondent.
Law Offices of Francis X. Young, PLLC (Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Joshua Block ], of counsel), for plaintiff-respondent-appellant.
Braff, Harris, Sukoneck & Maloof, New York, NY (Terrence M. McNamara of counsel), for defendant-respondent-appellant.
Newman Myers Kreines Harris, P.C., New York, NY (Ian F. Harris and Stephen N. Shapiro of counsel), for respondent.
MARK C. DILLON, J.P., REINALDO E. RIVERA, JOSEPH J. MALTESE, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Woods III in Westchester Homeowners Association, Inc., appeals, and the plaintiff and the defendant Manzer's Landscape Design & Development, Inc., separately cross-appeal, from an order of the Supreme Court, Westchester County (James W. Hubert, J.), dated January 24, 2020. The order, insofar as appealed from, denied that branch of the motion of the defendant Woods III in Westchester Homeowners Association, Inc., which was for summary judgment dismissing the first amended complaint insofar as asserted against it. The order, insofar as cross-appealed from by the plaintiff, granted that branch of the cross-motion of the defendant Cablevision of Ossining Limited Partnership which was for summary judgment dismissing the first amended complaint insofar as asserted against it. The order, insofar as cross-appealed from by the defendant Manzer's Landscape Design & Development, Inc., denied that branch of its cross-motion which was for summary judgment dismissing the cross-claims asserted against it by the defendant Woods III in Westchester Homeowner's Association, Inc.
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that the order is reversed insofar as cross-appealed from by the plaintiff, on the law, and that branch of the cross-motion of the defendant Cablevision of Ossining Limited Partnership which was for summary judgment dismissing the first amended complaint insofar as asserted against it is denied; and it is further,
ORDERED that the order is reversed insofar as cross-appealed from by the defendant Manzer's Landscape Design & Development, Inc., on the law, and that branch of that defendant's cross-motion which was for summary judgment dismissing the cross-claims asserted against it by the defendant Woods III in Westchester Homeowner's Association, Inc., is granted; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff, payable by the defendants Woods III in Westchester Homeowners Association, Inc., and Cablevision of Ossining Limited Partnership, and one bill of costs is awarded to the defendant Manzer's Landscape Design & Development, Inc., payable by the defendant Woods III in Westchester Homeowners Association, Inc.
In November 2016, the plaintiff allegedly was injured when he tripped and fell on an exposed cable wire located in a flower bed outside of a condominium unit located in Peekskill. The plaintiff, who at the time of the accident was a field technician for nonparty Verizon, was conducting a service call when the accident occurred. The defendant Cablevision of Ossining Limited Partnership (hereinafter Cablevision), allegedly owned the cable wire over which the plaintiff tripped and fell. The defendant Woods III in Westchester Homeowners Association, Inc. (hereinafter Woods III), was the homeowners’ association for the condominium complex in which the subject unit was located. The defendant Manzer's Landscape Design & Development, Inc. (hereinafter Manzer's), was under contract with Woods III to perform landscape work on the premises.
The plaintiff commenced this action to recover damages for personal injuries against Cablevision, Woods III, and Manzer's, among others. Woods III moved, inter alia, for summary judgment dismissing the first amended complaint insofar as asserted against it on the grounds that the allegedly dangerous condition was latent and that Woods III did not create or have notice of any such condition. Cablevision cross-moved, among other things, for summary judgment dismissing the first amended complaint insofar as asserted against it on the ground, among others, that it did not create the allegedly dangerous condition. Manzer's cross-moved, inter alia, for summary judgment dismissing the cross-claims asserted against it by Woods III for common-law indemnification, contribution, contractual indemnification, and alleging breach of contract for failure to procure insurance coverage.
By order dated January 24, 2020, the Supreme Court, inter alia, denied that branch of Woods III's motion which was for summary judgment dismissing the first amended complaint insofar as asserted against it, granted that branch of Cablevision's cross-motion which was for summary judgment dismissing the first amended complaint insofar as asserted against it, and denied that branch of the cross-motion of Manzer's which was for summary judgment dismissing the cross-claims insofar as asserted against it by Woods III. Woods III appeals, and the plaintiff and Manzer's separately cross-appeal, from stated portions of the order.
Under the common law, a property owner, or a party in possession or control of real property, has a duty to maintain the property in a reasonably safe condition (see Kellman v. 45 Tiemann Assoc., Inc., 87 N.Y.2d 871, 872, 638 N.Y.S.2d 937, 662 N.E.2d 255 ; Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 ; Mowla v. Baozhu Wu, 195 A.D.3d 706, 145 N.Y.S.3d 368 ). "A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property" ( Groom v. Village of Sea Cliff, 50 A.D.3d 1094, 1094, 857 N.Y.S.2d 646 [internal quotation marks omitted]; see Mowla v. Baozhu Wu, 195 A.D.3d at 706, 145 N.Y.S.3d 368 ).
In moving for summary judgment, a defendant has the burden of establishing, prima facie, that it did not create the alleged dangerous condition or have actual or constructive notice of it (see Buffalino v. XSport Fitness, 202 A.D.3d 902, 902–903, 163 N.Y.S.3d 208 ; Mowla v. Baozhu Wu, 195 A.D.3d at 706, 145 N.Y.S.3d 368 ; Fields v. New York City Hous. Auth., 186 A.D.3d 1330, 1330–1331, 128 N.Y.S.3d 902 ). A defendant has constructive notice of a dangerous or defective condition when it is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837–838, 501 N.Y.S.2d 646, 492 N.E.2d 774 ; Buffalino v. XSport Fitness, 202 A.D.3d at 903, 163 N.Y.S.3d 208 ; Mowla v. Baozhu Wu, 195 A.D.3d at 706, 145 N.Y.S.3d 368 ). To meet its initial burden on the issue of lack of constructive notice of an alleged defective condition, a defendant must offer evidence as to when the subject area was last inspected relative to the time when the incident occurred (see Buffalino v. XSport Fitness, 202 A.D.3d at 903, 163 N.Y.S.3d 208 ; Fortune v. Western Beef, Inc., 178 A.D.3d 671, 115 N.Y.S.3d 93 ; Radosta v. Schechter, 171 A.D.3d 1112, 1113, 97 N.Y.S.3d 664 ). "When ... ‘a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed’ " ( Arevalo v. Abitabile, 148 A.D.3d 658, 659, 48 N.Y.S.3d 506, quoting Applegate v. Long Is. Power Auth., 53 A.D.3d 515, 516, 862 N.Y.S.2d 86 ; see Buffalino v. XSport Fitness, 202 A.D.3d at 903, 163 N.Y.S.3d 208 ).
"In moving for summary judgment on the ground that [a] defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection" ( Arevalo v. Abitabile, 148 A.D.3d at 660, 48 N.Y.S.3d 506 ; see Buffalino v. XSport Fitness, 202 A.D.3d at 903, 163 N.Y.S.3d 208 ). "[T]he issue of whether a hazard is latent or open and obvious is generally fact-specific and thus usually a jury question" ( Tagle v. Jakob, 97 N.Y.2d 165, 169, 737 N.Y.S.2d 331, 763 N.E.2d 107 ; Kastin v. Ohr Moshe Torah Inst., Inc., 170 A.D.3d 697, 698, 95 N.Y.S.3d 292 ; Graffino v. City of New York, 162 A.D.3d 990, 991, 80 N.Y.S.3d 444 ).
Here, the evidence proffered in support of Woods III's motion, which included, inter alia, various photographs taken by the plaintiff immediately after the accident, as well as a transcript of the plaintiff's deposition testimony, failed to establish, prima facie, that the condition over which the plaintiff tripped and fell on the date of the accident amounted to a latent defect or condition or one that could not have been discovered upon a reasonable inspection (see Buffalino v. XSport Fitness, 202 A.D.3d at 904, 163 N.Y.S.3d 208 ; Gairy v. 3900 Harper Ave., LLC, 146 A.D.3d 938, 939, 45 N.Y.S.3d 564 ; Bergin v. Golshani, 130 A.D.3d 767, 768, 14 N.Y.S.3d 98 ). Moreover, the evidence submitted in support of Woods III's motion failed to establish, prima facie, that Woods III lacked constructive notice of the condition alleged (see Buffalino v. XSport Fitness, 202 A.D.3d at 903, 163 N.Y.S.3d 208 ; Fortune v. Western Beef, Inc., 178 A.D.3d at 671, 115 N.Y.S.3d 93 ; Radosta v. Schechter, 171 A.D.3d at 1113, 97 N.Y.S.3d 664 ).
Accordingly, the Supreme Court properly denied that branch of Woods III's motion which was for summary judgment dismissing the first amended complaint insofar as asserted against it, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
As a general rule, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property (see Toner v. Trader Joe's E., Inc., 209 A.D.3d 690, 176 N.Y.S.3d 278 ; Smith v. 4 Empire Mgt. Group, Inc., 208 A.D.3d 811, 812, 172 N.Y.S.3d 632 ; Micek v. Greek Orthodox Church of Our Savior, 139 A.D.3d 830, 831, 31 N.Y.S.3d 189 ). The existence of one or more of these elements is sufficient to give rise to a duty of care (see Donatien v. Long Is. Coll. Hosp., 153 A.D.3d 600, 57 N.Y.S.3d 422 ; Clifford v. Woodlawn Volunteer Fire Co., Inc., 31 A.D.3d 1102, 1103, 818 N.Y.S.2d 715 ). Where none is present, "[generally] a party cannot be held liable for injuries caused by the [allegedly] defective condition" ( Ruffino v. New York City Tr. Auth., 55 A.D.3d 819, 820, 865 N.Y.S.2d 674 [internal quotation marks omitted]; see Smith v. 4 Empire Mgt. Group, Inc., 208 A.D.3d at 812, 172 N.Y.S.3d 632 ; Donatien v. Long Is. Coll. Hosp., 153 A.D.3d at 600–601, 57 N.Y.S.3d 422 ). However, liability can also be imposed upon a party that creates a dangerous or defective condition (see Micek v. Greek Orthodox Church of Our Savior, 139 A.D.3d at 830, 31 N.Y.S.3d 189 ; Warren v. Wilmorite, Inc., 211 A.D.2d 904, 905, 621 N.Y.S.2d 184 ).
Cablevision, in support of its cross-motion, failed to establish that it did not own, install, control, or service the cable wire at issue. Moreover, the evidence proffered in support of its cross-motion, which included, inter alia, a transcript of the deposition testimony of Cablevision's director of operations for field service, failed to eliminate all triable issues of fact as to whether an employee or an agent of Cablevision created the allegedly dangerous condition as a result of prior service calls to the subject condominium unit that occurred in 2012 and 2014 (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Cablevision's submissions failed to establish, as a matter of law, that anyone who was sent to the subject premises in relation to those service calls in 2012 and 2014 was an independent contractor (see Roger v. Homestead Renovations, LLC, 119 A.D.3d 668, 669, 990 N.Y.S.2d 527 ).
Accordingly, the Supreme Court should have denied that branch of Cablevision's cross-motion which was for summary judgment dismissing the first amended complaint insofar as asserted against it, without regard to the sufficiency of the papers submitted in opposition thereto (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
With respect to the cross-appeal by Manzer's, since the Supreme Court granted that branch of the cross-motion of Manzer's which was for summary judgment dismissing the first amended complaint insofar as asserted against it on the ground, among others, that it owed no duty to the plaintiff, the court also should have granted those branches of the cross-motion of Manzer's which were for summary judgment dismissing Woods III's cross-claims for common-law indemnification and contribution insofar as asserted against it.
The Supreme Court also should have granted that branch of the cross-motion of Manzer's which was for summary judgment dismissing Woods III's cross-claim for contractual indemnification. "[T]he right to contractual indemnification depends upon the specific language of the contract," and "[t]he promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding facts and circumstances" ( Shaughnessy v. Huntington Hosp. Assn., 147 A.D.3d 994, 999–1000, 47 N.Y.S.3d 121 [internal quotation marks omitted]; see Gurewitz v. City of New York, 175 A.D.3d 658, 664, 109 N.Y.S.3d 167 ; O'Donnell v. A.R. Fuels, Inc., 155 A.D.3d 644, 645, 63 N.Y.S.3d 504 ). Based on the language of the maintenance contract that existed between Woods III and Manzer's on the date of the accident, as well as the other evidence submitted in support of the cross-motion of Manzer's, Manzer's established, prima facie, that Woods III was not entitled to contractual indemnification. In opposition to that prima facie showing, Woods III failed to raise a triable issue of fact.
Moreover, the Supreme Court also should have granted that branch of the cross-motion of Manzer's which was for summary judgment dismissing Woods III's cross-claim alleging breach of contract for failure to provide insurance coverage insofar as asserted against it (see Georges v. Resorts World Casino N.Y. City, 189 A.D.3d 1549, 139 N.Y.S.3d 369 ).
The remaining contentions of Cablevision and Manzer's are without merit.
DILLON, J.P., RIVERA, MALTESE and VOUTSINAS, JJ., concur.